United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 95-4249

___________ Johnnie L. Ruth, * * Appellant, * * v. * Appeal from the Unite d States * District Court for the Togo D. West, Jr., Secretary, * Eastern District of Arkansas. Department of the Army, * * [UNPUBLISHED] Appellee. *

___________ Submitted: June 4, 199 7 Filed: June 9, 1997

___________ Before BOWMAN, WOLLMAN, and BEAM, Circuit Judges.

___________ PER CURIAM.

Jo hnnie L. Ruth appeals the district court' s dism issal of his action under Title VII, 42 U.S.C. § 2000 e et seq. , for failure to exhaust administrativ e remedies. We reverse and remand for further proceedings in the district court. Ruth, who is black, began working as a security guar d for the Army at the Pine Bluff Arsenal in 198 0. On March-2-

22, 1991, he was terminated for attempted theft o f gove rnment property and willful use of a governmen t vehicle for other than official-3-

purposes. Ruth timely pursued administrative remedie s with the agency and the Merit Systems Protection Boar d (MSP B), both of which denied relief. On November 7 , 1994 , Ruth filed a timely petition with the EEOC fo r revie wof the MSPB decision. On January 19, 1995--7 3 days after filing his petition--Ruth filed this actio n ag ainst the Secretary of the Department of the Army , claiming he had been discharged based on his race.
De fendant moved for dismissal or summary judgment
. Ruthmoved to amend his pro se complaint, in part t o incl ude a February 1995 right-to-sue letter from th e EEOC. The district court denied Ruth's motion an d dism issed the complaint for failure to exhaus t admi nistrative remedies, as Ruth had filed his distric t cour t action before receiving a right-to-sue letter o r waiti ng the required 180 days from the date of filin g with the EEOC.
We r eview this dismissal de novo. See McAdams v
. Re no , 64 F.3d 1137, 1141 (8th Cir. 1995). Federa l empl oyees asserting Title VII claims must exhaust thei r admin istrative remedies before filing a federal cour t action, and if they choose to proceed with certai n optional administrative remedies, they must e xhaust their claim s in that forum before filing a civil action. Se e id. at 1141-42. A federal employee may file a civi l action after 180 days from the date of filing with th e EEOC, see 29 C.F.R. § 1614.310(i) (1995), or within 3 0 days of receiving notice that the EEOC concurs with th e MSPB, see 29 C.F.R. § 1614.310(d) (1995). Although Ruth mistakenly filed his federal actio n before the expiration of his 180-day EEOC wai ting period,-4-

we ho ld that the mistake was cured by Ruth's receipt o f a right-to -sue letter before the case was dismissed. We have previously held, in the context of an em ployee suing a priva te employer, that the failure to obtain a right

to-sue letter prior to the commencement of a suit is a cu rable defect, cured by the subsequent receipt of a right-to-sue letter. Jones v. American State Bank , 85 7 F.2d 4 94, 499-500 (8th Cir. 1988) (relying on Zipes v
. Trans World Airlines, Inc. , 455 U.S. 385, 393-5-

(1982)); s ee also Edwards v. Department of the Army , 708 F.2d 13 44, 1346-47 (8th Cir. 1983) (applying Zipes t o former federal employee).
We decline to determine the merits of defendant' s summary ju dgment motion in the first instance. See Pace v. Moriarty , 83 F.3d 261, 263 (8th Cir. 1996).
Acco rdingly, we reverse and remand for furthe r proceedings. A true copy.
Attest: CLERK, U. S. COURT OF APPEALS, EIGHT H CIRCUIT.